Dale v. Northern NH Correctional Facility, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James Dale
v. Civil No. 16-cv-292-SM
Michelle Goings, Warden,
Northern New Hampshire Correctional Facility
REPORT AND RECOMMENDATION
Before the court is respondent’s motion to dismiss (Doc.
No. 10) James Dale’s petition for a writ of habeas corpus, filed
pursuant to 28 U.S.C. § 2254. Dale has not filed an objection.
Background
In July 1997, a six-year-old girl was raped and smothered
in her mother’s Contoocook, New Hampshire, apartment, in a
bedroom she shared with her younger sister. After the incident,
the victim’s mother, Ruth Knapp, told investigators that she
confronted her boyfriend, Richard Buchanan, as he was on top of
her daughter, with a pillow over the girl’s head, the night the
victim died. The state initially charged Buchanan, and then
dismissed the charges after DNA evidence ruled him out as a
suspect. After further investigation, the state charged James
Dale, who had been a tenant in the same apartment building at
the time of the rape and murder, and who had left the state in
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August 1997.
The case against Dale proceeded to a jury trial in February
1999. The evidence at trial included Dale’s confession to a
cellmate as well as DNA evidence showing that Dale could not be
excluded as the source of the sperm found in and on the victim’s
body.
The jury convicted Dale, and on March 25, 1999, the court
sentenced Dale to a prison term of 40 to 80 years on the murder,
and two consecutive, 10 to 20 year terms on the aggravated
felonious sexual assault charges. The New Hampshire Supreme
Court affirmed Dale’s conviction in 2001. See State v. Dale,
146 N.H. 286, 770 A.2d 1111 (2001).
After his conviction was affirmed, Dale filed a state
habeas petition. See Doc. No. 10-2, at 27-31. The Superior
Court appointed Attorney Brian McEvoy to represent Dale in that
proceeding, and Attorney McEvoy asserted claims of ineffective
assistance of trial counsel that Dale raised in the § 2254
petition before this court. Cf. Pet’r Request for Findings of
Fact and Rulings of Law, Dale v. Coplan, No. 01-E-0459 (filed
May 28, 2004) (Doc. No. 10-2, at 33-41). An evidentiary hearing
was scheduled in that case on November 23, 2004, at which
Attorney McEvoy appeared on Dale’s behalf. Dale, who was
incarcerated in Pennsylvania at the time, refused to be
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transported to a facility to participate in that hearing by
video conference. Dale cites advice he received from Attorney
McEvoy as a reason he refused transport. Cf. Ltr. to Dale, July
23, 2004 (Doc. No. 7-1, at 1). The Superior Court, noting
Dale’s refusal to participate, dismissed that case with
prejudice. See Dale v. Coplan, No. 01-E-0459 (N.H. Super. Nov.
24, 2004) (Doc. No. 10-2 at 43-44) (“2004 Order”). The New
Hampshire Supreme Court declined to accept Dale’s appeal of that
order, see Dale v. Coplan, No. 2005-0051 (N.H. Mar. 25, 2005),
and the U.S. Supreme Court denied Dale’s certiorari petition.
See Dale v. Coplan, No. 05-6470 (U.S. Nov. 28, 2005).
In September 2013, Dale filed a second state post-
conviction proceeding, which he entitled as a motion for a new
trial. The Superior Court appointed counsel to represent Dale
in that case, and counsel filed a state habeas petition on
Dale’s behalf in 2014. On January 28, 2015, the Superior Court
granted the warden’s motion to dismiss that case. See Dale v.
Reilly, No. 217-2014-cv-148 (N.H. Super., Merrimack Cnty., Jan.
28, 2015) (Doc. No. 10-6, 16-32) (“2015 Order”). The NHSC did
not accept Dale’s appeal of the 2015 Order. See Dale v. Warden,
No. 2015-0127 (N.H. Apr. 24, 2015) (Doc. No. 10-5, at 1).
Dale’s next step was to file this § 2254 petition. In this
pro se petition (Doc. No. 1), Dale maintains his innocence of
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the offenses of which he was convicted, and asserts claims of
ineffective assistance of counsel. Dale’s claims are summarized
and renumbered as follows:
1. Dale’s conviction was obtained in violation of his
Sixth Amendment right to the effective assistance of
counsel at trial, in that:
A. Trial counsel failed to call Ruth Knapp as a
witness, who would have testified that she saw
Buchanan commit the crime.
B. Trial counsel failed to call the victim’s younger
sister as a witness.
C. Trial counsel failed to meaningfully challenge
the DNA evidence, in that: (i) counsel withdrew a
motion to exclude that evidence before trial; and (ii)
counsel failed to cross-examine the state’s expert on
issues that could undermine the impact of such
evidence, relating to the methodology used, the
possibility of human error, the risk of contamination,
the detection limits, and bias.
D. Trial counsel failed to present a coherent
defense, by failing to attack the DNA evidence
adequately, and by failing to present available
evidence that someone other than Dale committed the
crime.
E. Trial counsel failed to meaningfully confront the
medical evidence, with respect to the pathologist’s
opinion as to the time of death.
F. Trial counsel failed to meaningfully confront
Dale’s cellmate’s testimony by failing to offer
evidence regarding where the police found pillows,
which could have impeached the cellmate’s testimony.
G. Trial counsel failed to object to the use of a
coin flip to select an alternate juror.
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H. Trial counsel failed to execute his duty of
loyalty to his client by becoming romantically
involved with the prosecutor.
2. Counsel representing Dale in post-conviction
proceedings, Attorney Brian McEvoy, provided ineffective
assistance of counsel:
A. By telling Dale that Dale was not obligated to
participate by video conference in the post-conviction
hearing on November 23, 2004, which led to Dale’s
refusal to be transported to the video conference
facility;
B. By failing to inform either the Superior Court
when it issued the 2004 Order dismissing that post-
conviction proceeding, or any courts reviewing the
2004 Order, that Attorney McEvoy had advised Dale that
Dale was not obligated to participate via video
conference in the November 2004 hearing; and
C. By continuing to represent Dale, after the
issuance of the 2004 Order, even though a conflict of
interest had developed between Attorney McEvoy and
Dale, regarding whether to disclose Attorney McEvoy’s
advice as one reason Dale had refused transport to the
video facility; and
D. By telling Dale that the U.S. Supreme Court’s
denial of certiorari review had essentially
extinguished the underlying state habeas petition.
Discussion
I. Statute of Limitations
Respondent argues that the entire § 2254 petition is
untimely, and that it should be dismissed pursuant to 28 U.S.C.
§ 2244(d)(1). Respondent points out that Dale has not
demonstrated diligence in pursuing state post-conviction
remedies. Respondent does not make any argument, however, as to
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whether Dale’s actual innocence claim -– based largely on trial
counsel’s failure to call Ruth Knapp as a witness -- is the type
of credible gateway claim of actual innocence that might allow a
petitioner to obtain relief upon otherwise untimely federal
constitutional claims, notwithstanding his lack of diligence.
Cf. McQuiggin v. Perkins, 133 S. Ct. 1924, 1933 (2013) (actual
innocence exception “applies to a severely confined category:
cases in which new evidence shows ‘it is more likely than not
that no reasonable juror would have convicted’” petitioner in
light of that new evidence (citation omitted)).
In the November 17, 2016 Order (Doc. No. 8), this court
noted that petitioner had asserted a claim of actual innocence,
and concluded, for reasons stated in that Order (Doc. No. 8),
that the court lacked the parts of the state court record it
needed to evaluate whether, under McQuiggin, Dale had stated a
credible actual innocence claim. While respondent has taken
steps since that time to augment the record by filing certain
state court documents here, the record before this court remains
incomplete, in pertinent part. This court lacks access to, for
example, any pertinent transcript of the state trial and post-
conviction proceedings, which it might use to evaluate whether
the petitioner’s evidence satisfies the McQuiggin standard. For
that reason, and for reasons stated more completely in the
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November 17, 2016 Order (Doc. No. 8), the district judge should
deny the motion to dismiss, to the extent it is based on the
statute of limitations, without prejudice to respondent’s
ability to reassert that defense in a motion for summary
judgment, after respondent files a more complete record.
II. Procedural Default
Respondent argues that Claim 1, relating to the performance
of Dale’s trial counsel, is procedurally defaulted. In
particular, respondent argues that the 2015 Order denied relief
on procedural grounds. See Doc. No. 10-6, at 22.
“A state court’s invocation of a procedural rule to deny a
prisoner’s claims precludes federal review of the claims if,
among other requisites, the state procedural rule is a
nonfederal ground adequate to support the judgment and the rule
is firmly established and consistently followed.” Martinez v.
Ryan, 132 S. Ct. 1309, 1316 (2012). “[W]hen a state prisoner
has defaulted a federal claim in state court pursuant to an
independent and adequate state procedural rule, federal habeas
relief is barred unless the prisoner demonstrates either cause
for and prejudice from the default, or actual innocence.” Costa
v. Hall, 673 F.3d 16, 25 (1st Cir. 2012) (citations omitted).
Respondent “bears the burden . . . ‘of persuading the court that
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the factual and legal prerequisites of a default . . . are
present.’” Pike v. Guarino, 492 F.3d 61, 73 (1st Cir. 2007).
Here, respondent has made no attempt to address (1) the
relevance of procedural default arguments relating to the 2015
Order, given that many of the same claims at issue in that case
had been raised in the first state habeas proceeding underlying
the 2004 Order; (2) whether the procedural rules cited by the
court in the 2015 Order are properly deemed by this court to be
“firmly established” and “consistently followed” in New
Hampshire; and (3) whether Dale’s claims of Attorney McEvoy’s
ineffective assistance relating to the 2004 Order, and/or Dale’s
claims of actual innocence of the underlying offenses, would
suffice to overcome the procedural defaults here. Accordingly,
respondent’s motion to dismiss Dale’s § 2254 petition should be
denied to the extent it is based on procedural default, without
prejudice to respondent’s ability to renew that defense in a
properly supported motion for summary judgment.
III. Claim 2, Relating to Post-Conviction Counsel
Respondent argues that Claim 2 should be dismissed, to the
extent it seeks federal habeas relief based on Attorney McEvoy’s
representation of Dale in a state post-conviction proceedings.
Respondent relies on 28 U.S.C. § 2254(i), and cites cases in
support of her position.
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Section 2254(i) provides that “[t]he ineffectiveness or
incompetence of counsel during Federal or State collateral post-
conviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254.” 28 U.S.C. § 2254(i).
That statute applies to Claim 2 in this case. See Bourdon v.
Goings, No. 15-CV-138-LM, 2016 WL 7480266, at *2, 2016 U.S.
Dist. LEXIS 179729, at *4-*7 (D.N.H. Nov. 30, 2016) (citing,
inter alia, Martinez, 132 S. Ct. at 1320 (Ҥ 2254(i) precludes
[petitioner] from relying on the ineffectiveness of his
postconviction attorney as a ‘ground for relief’” (citation
omitted)), R&R adopted, No. 15-CV-138-LM, 2016 WL 7480356, 2016
U.S. Dist. LEXIS 179727 (D.N.H. Dec. 29, 2016). Accordingly,
respondent’s motion to dismiss should be granted, in part, to
the extent that Attorney McEvoy’s alleged ineffective assistance
in post-conviction proceedings may not be litigated as a
separate ground for relief, and Claim 2 should be dismissed.
Conclusion
For the foregoing reasons, the district judge should grant
respondent’s motion to dismiss (Doc. No. 10), in part, to the
extent it seeks dismissal of Claim 2, above, and should
otherwise deny the motion. Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
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this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen day
period may be extended upon motion. Failure to file objections
within the specified time waives the right to appeal the
district court’s order. See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
March 29, 2017
cc: James Dale, pro se
Elizabeth Woodcock, Esq.
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